Legal professional privilege – lessons from recent case law
It is five years since the Court of Appeal’s landmark judgment on LPP in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation  EWCA Civ 2006.
The period since has been one of relative stability in the English courts’ approach to LPP. However, that has not stopped parties taking points about privilege, resulting in a steady stream of reported decisions.
Some have provided useful illustrations of perennial issues, while others have given rise to more controversial points.
LPP takes two forms, legal advice privilege (LAP) and litigation privilege (LP).
In this article, we focus on recent decisions containing important lessons for in-house lawyers about when LAP will attach to communications.
For most in-house lawyers, LAP is the most relevant form of LPP on a day-to-day basis.
Key takeaways include:
- remember that not all jurisdictions recognise privilege for in-house lawyers, so seek foreign law input on privilege in international matters and structure advice accordingly
- where documents contain both privileged and non-privileged content, segregate these clearly to avoid the privileged content being disclosable
- consider the purpose and privilege status of any document at the time of its creation, and seek specialist advice on structuring any investigation
Legal advice privilege – who is a “lawyer”?
Broadly, LAP applies to confidential communications between a “lawyer” and their client, the dominant purpose of which is the giving or seeking of legal advice.
It is well-established that, in English law, an in-house lawyer is as much a “lawyer” for these purposes as one in private practice.
However, some other legal systems still do not regard in-house lawyers as sufficiently “independent” to be afforded privilege.
This is true of EU privilege (applicable in European Commission competition investigations, for example) and under the laws of some European member states.
For the purposes of disclosure in English proceedings, the English law approach will apply.
Moreover, in PJSC Tatneft v Bogolyubov  EWHC 2437 (Comm), the Commercial Court confirmed that LAP extends to communications between foreign in-house lawyers and their clients regardless of foreign national standards of qualification, regulation or privilege laws.
Such lawyers will be treated by the English courts as entitled to privilege provided they are acting “in the capacity or function of a lawyer”.
This can be helpful if a multinational business takes advice from in-house lawyers in multiple jurisdictions, and a dispute later arises in England.
However, English in-house lawyers must remember that their own advice may not be afforded the same protection elsewhere.
Accordingly, if advising on a sensitive matter with an international dimension, consideration should be given to obtaining advice on the privilege laws of any foreign jurisdiction in which a dispute or regulatory action may arise; and to structuring how advice is given in light of this, involving external lawyers if necessary.
Assessing “dominant purpose” when a communication has multiple recipients and purposes
A frequent issue in-house is that communications often have multiple purposes and recipients – some legal, some commercial – so that assessing whether their dominant purpose is legal advice can be difficult.
In Jet2 v Civil Aviation Authority  EWCA Civ 35, on which we have commented previously, the Court of Appeal distilled a number of principles, including:
- if an email is sent simultaneously to various individuals for advice or comments, including a lawyer for their input, the question is what is the email’s dominant purpose
- if the dominant purpose is to instruct the lawyer to advise, then the email will be privileged (assuming the other ingredients of LAP are also met)
- if the dominant purpose is to obtain commercial views from non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is to obtain legal advice from the lawyer.
- however, where a communication might realistically disclose legal advice, it will in any event be privileged
- some communications may have a commercial, non-privileged dominant purpose, but contain privileged elements – for example, minutes of a meeting attended by non-lawyers and lawyers, at which commercial matters are discussed but the lawyer adds legal input as required. Where not “inextricably intermingled”, the privileged parts may be redacted but the rest will be disclosable
Some of the difficulties which may arise in the application of these logical principles were discussed in Wiseman v HMRC  UKFTT 00075 (TC).
Here, HMRC challenged a taxpayer’s claim to privilege in communications with his legal advisers which, HMRC argued, did not relate exclusively to privileged matters.
The First-tier Tribunal (FTT) recognised that there can be “practical difficulties in separating the parts of a document so that the privileged parts can be redacted”.
The FTT concluded that if privileged and non-privileged parts of a document are inextricably intermingled, both should be disclosed.
While FTT decisions are not binding, Wiseman demonstrates the dangers of documents containing both privileged and non-privileged content, if the two are not clearly segregated.
The view is sometimes taken that a document can be drafted to so interweave privileged material throughout otherwise non-privileged content, that the whole document will be non-disclosable.
If other tribunals take the same approach as the FTT, the opposite will be true: if the privileged content cannot be separated clearly, the whole will be disclosable.
These cases give rise to a number of takeaways.
We have written previously about reminding the business that merely copying a lawyer into emails or inviting them to meetings does not “clothe” those discussions with privilege.
Particular care should also be taken when drafting emails, papers and board or other meeting minutes to clearly segregate privileged and non-privileged matters.
No retrospective privilege
It is a longstanding principle that a document will only attract LPP if it satisfies the ingredients of privilege at the time of creation.
The fact it is subsequently put to a privileged purpose, such as being given to a lawyer for their advice, does not cause privilege to attach retrospectively.
In University of Dundee v Chakraborty  CSIH 22, a Scottish case but which would likely have been decided similarly in England, the university appointed an independent investigator to examine an employee’s complaints of racism, bullying and harassment.
The investigator submitted a draft report, which was reviewed and edited by the university’s lawyers before being disclosed in Employment Tribunal proceedings which had by that stage commenced.
The edited version contained a footnote that the report had been amended following “independent legal advice”.
The court ordered the university to disclose the original version, rejecting an argument that this would infringe privilege because a comparison between the draft and final reports would reveal the legal advice the university had received.
It is crucial to consider the purpose and privilege status of any document at the time of its creation.
If not privileged – for example, because it has a pure fact-finding purpose – it is important to appreciate that it may be disclosable to third parties, regardless of any subsequent use to which it is put.
There may be some circumstances where facts, on which legal advice will be required, can be ascertained or recorded in such a way as to attract privilege.
For example, in some circumstances LP may apply; or it might sometimes be possible to record facts exclusively in the form of instructions from the business “client” to the in-house lawyer, in such a way as to attract LAP.
As a result, where the business proposes to conduct any investigation, in-house lawyers should be front and centre from the outset and, if in any doubt about how best to structure the process, specialist investigations lawyers should be consulted.
I want to know more
Read our practice note on LPP for more information on the main principles, practitioners’ duties and examples of LPP in practice.
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